Mary Sue Shipley v. AR Blue Cross & Blue

1 The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-3673
___________
Donald J. Cakora, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Jo Anne B. Barnhart, Commissioner, * [UNPUBLISHED]
Social Security Administration, *
*
Appellee. *
___________
Submitted: May 23, 2003
Filed: June 19, 2003
___________
Before WOLLMAN, FAGG, and HANSEN, Circuit Judges.
___________
PER CURIAM.
Donald J. Cakora appeals the district court’s 1 order affirming the denial of
disability benefits. In his July 1999 application, Cakora alleged disability since June
1999 from traumatic epilepsy and an organic mental disorder. After a hearing, where
a vocational expert (VE) testified, the administrative law judge (ALJ) determined that
Cakora could perform the jobs the VE identified in response to a hypothetical the ALJ

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posed. Having carefully reviewed the record, see Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2001) (substantial-evidence standard of review), we affirm.
Cakora first argues that the ALJ erred by ignoring several diagnoses and not
considering his impairments in combination. We disagree. The diagnoses he lists
were either not confirmed or not mentioned in the medical records, or he received no
more than conservative treatment for them. The ALJ’s opinion indicates he
considered the combined effects of the impairments that were supported by the
record. See Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994).
We next reject Cakora’s challenges to the ALJ’s determinations that treating
physician Richard Burnett’s opinions about Cakora’s ability to work were not entitled
to great weight, that the testimony of Cakora and his friend Terry Walker were not
credible, and that the Department of Veterans Affairs (VA) disability determination
was not controlling. Contrary to Cakora’s assertion, the ALJ gave multiple valid
reasons for discounting Dr. Burnett’s opinions, see Krogmeier v. Barnhart, 294 F.3d
1019, 1023 (8th Cir. 2002) (statements that claimant could not be gainfully employed
are not medical opinions; when treating physician’s opinion is inconsistent with or
contrary to medical evidence, it is not entitled to deference); the ALJ adequately
explained and supported his credibility findings, see Lowe v. Apfel, 226 F.3d 969,
972 (8th Cir. 2000); we find no basis for Cakora’s contention that the testimony of
his friend, who had worked as a mental-health technician, was entitled to more weight
because of his medical expertise, cf. 20 C.F.R. § 404.1513(a) (2003) (acceptable
medical sources); and the ALJ’s opinion reflects that he reviewed and considered the
medical evaluations upon which Cakora’s most recent VA disability rating was based,
see Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998) (VA disability rating is not
binding on ALJ considering application for Social Security disability benefits, but it
must be considered).

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Cakora also contends the ALJ did not properly evaluate his posttraumatic stress
disorder (PTSD) and his organic mental disorder. We find no diagnosis of PTSD in
the record, and it appears that VA psychiatrist James Doolos ruled out PTSD.
However, Cakora based his benefits application in part on organic mental disorder,
a diagnosis Dr. Doolos did make, and thus the ALJ should have completed a
psychiatric review technique form (PRTF). See 20 C.F.R. § 404.1520a (2003)
(evaluation of mental impairments). Nonetheless, we find the error harmless,
because Cakora testified that he had memory and concentration problems or
“glitches” only monthly, with the “glitches” lasting at most fifteen to twenty minutes;
tests in 1988, 1990, and 1999--which were the only ones in the record--indicated no
new changes in his brain and only a mild memory loss; he still engaged in numerous
activities; and the VE testified that Cakora could work at the identified jobs even if
he had brief monthly episodes of altered awareness. See Montgomery v. Shalala, 30
F.3d 98, 100-01 (8th Cir. 1994) (suggesting that failure to complete PRTF could, in
certain cases, be harmless).
Finally, Cakora claims the ALJ did not develop the record and that the
hypothetical he posed did not adequately describe Cakora’s limitations. The hearing
transcript does not support Cakora’s assertion that the ALJ stated he would arrange
for a consultative examination; the ALJ considered the records of the VA specialists
who were treating Cakora for his allegedly disabling seizures and organic mental
disorder; and although the VA records predate Cakora’s alleged June 1999 date of
onset, Cakora did not request at the August 2000 hearing, where he was counseled
and submitted additional records, that the record be held open; the medical records
before the ALJ reflected no treatment for Cakora’s allegedly disabling conditions
after June 1999 and no treatment at all after November 1999; and at the Appeals
Council stage, Cakora offered only Dr. Burnett’s conclusory February 2001 letter
without any supporting treatment records. See Haley v. Massanari, 258 F.3d 742,
749-50 (8th Cir. 2001) (ALJ may issue decision without obtaining additional medical
evidence if existing evidence provides sufficient basis for decision); Shannon v.

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Chater, 54 F.3d 484, 488 (8th Cir. 1995) (fact that claimant’s counsel did not obtain
records suggests they had only minor importance; reversal for failure to develop
record justified only where such failure is unfair or prejudicial). As to the
hypothetical, it included seizure- and “glitch”-related limitations. See Hunt v.
Massanari, 250 F.3d 622, 625 (8th Cir. 2001) (hypothetical is sufficient if it sets forth
impairments supported by substantial evidence and accepted as true by ALJ);
Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999) (VE’s response to properly
phrased hypothetical constitutes substantial evidence).
Accordingly, the judgment is affirmed. See Pearsall, 274 F.3d at 1217 (if
reviewing court finds it possible to draw two inconsistent positions from evidence
and one position represents Commissioner’s findings, court must affirm).
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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